ORS 107.718
Restraining order

service of order
request for hearing

Text
Annotations 12

(1)

When a person files a petition under ORS 107.710 (Petition to circuit court for relief), the circuit court shall hold an ex parte hearing in person or by telephone on the day the petition is filed or on the following judicial day. Upon a showing that the petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an imminent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner or the petitioner’s child, the court shall, if requested by the petitioner, order:

(a)

Except as provided in subsection (2) of this section, that temporary custody of the children of the parties be awarded to the petitioner or, at the request of the petitioner, to the respondent, subject to reasonable parenting time rights of the noncustodial parent, which the court shall order, unless such parenting time is not in the best interest of the child;

(b)

That the respondent be required to move from the petitioner’s residence, if in the sole name of the petitioner or if it is jointly owned or rented by the petitioner and the respondent, or if the parties are married to each other;

(c)

That the respondent be restrained from entering, or attempting to enter, a reasonable area surrounding the petitioner’s current or subsequent residence if the respondent is required to move from petitioner’s residence;

(d)

That a peace officer accompany the party who is leaving or has left the parties’ residence to remove essential personal effects of the party or the party’s children, or both, including but not limited to clothing, toiletries, diapers, medications, Social Security cards, certified copies of records of live birth, identification and tools of the trade;

(e)

That the respondent be restrained from intimidating, molesting, interfering with or menacing the petitioner, or attempting to intimidate, molest, interfere with or menace the petitioner;

(f)

That the respondent be restrained from intimidating, molesting, interfering with or menacing any children in the custody of the petitioner, or attempting to intimidate, molest, interfere with or menace any children in the custody of the petitioner;

(g)

That the respondent be restrained from entering, or attempting to enter, on any premises and a reasonable area surrounding the premises when it appears to the court that such restraint is necessary to prevent the respondent from intimidating, molesting, interfering with or menacing the petitioner or children whose custody is awarded to the petitioner;

(h)

Other relief that the court considers necessary to:

(A)

Provide for the safety and welfare of the petitioner and the children in the custody of the petitioner, including but not limited to emergency monetary assistance from the respondent; and

(B)

Prevent the neglect and protect the safety of any service or therapy animal or any animal kept for personal protection or companionship, but not an animal kept for any business, commercial, agricultural or economic purpose; or

(i)

Except as described in subsection (12) of this section or parenting time ordered under this section, that the respondent have no contact with the petitioner in person, by telephone or by mail.

(2)

If the court determines that exceptional circumstances exist that affect the custody of a child, the court shall order the parties to appear and provide additional evidence at a hearing to determine temporary custody and resolve other contested issues. Pending the hearing, the court may make any orders regarding the child’s residence and the parties’ contact with the child that the court finds appropriate to provide for the child’s welfare and the safety of the parties. The court shall set a hearing time and date as provided in ORS 107.716 (Hearing) (2) and issue a notice of the hearing at the same time the court issues the restraining order.

(3)

The court’s order under subsection (1) of this section is effective for a period of one year or until the order is withdrawn or amended, or until the order is superseded as provided in ORS 107.722 (Effect of dissolution, annulment or separation judgment or modification order on abuse prevention order), whichever is sooner.

(4)

If respondent is restrained from entering, or attempting to enter, an area surrounding petitioner’s residence or any other premises, the order restraining respondent shall specifically describe the area.

(5)

Imminent danger under this section includes but is not limited to situations in which the respondent has recently threatened petitioner with additional bodily harm.

(6)

If the court awards parenting time to a parent who committed abuse, the court shall make adequate provision for the safety of the child and of the petitioner. The order of the court may include, but is not limited to, the following:

(a)

That exchange of a child between parents shall occur at a protected location.

(b)

That parenting time be supervised by another person or agency.

(c)

That the perpetrator of the abuse be required to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or any other counseling program designated by the court as a condition of the parenting time.

(d)

That the perpetrator of the abuse not possess or consume alcohol or controlled substances during the parenting time and for 24 hours preceding the parenting time.

(e)

That the perpetrator of the abuse pay all or a portion of the cost of supervised parenting time, and any program designated by the court as a condition of parenting time.

(f)

That no overnight parenting time occur.

(7)

The State Court Administrator shall prescribe the content and form of the petition, order and related forms for use under ORS 107.700 (Short title) to 107.735 (Duties of State Court Administrator). The clerk of the court shall make available the forms and an instructional brochure explaining the rights set forth under ORS 107.700 (Short title) to 107.735 (Duties of State Court Administrator).

(8)

If the court orders relief:

(a)

The clerk of the court shall provide without charge the number of certified true copies of the petition and order necessary to provide the petitioner with one copy and to effect service and shall have a true copy of the petition and order delivered to the county sheriff for service upon the respondent, unless the court finds that further service is unnecessary because the respondent appeared in person before the court. In addition and upon request by the petitioner, the clerk shall provide the petitioner, without charge, two exemplified copies of the petition and order.

(b)

The county sheriff shall serve the respondent personally unless the petitioner elects to have the respondent served personally by a private party or by a peace officer who is called to the scene of a domestic disturbance at which the respondent is present, and who is able to obtain a copy of the order within a reasonable amount of time. Proof of service shall be made in accordance with ORS 107.720 (Enforcement of restraining orders). When the order does not contain the respondent’s date of birth and service is effected by the sheriff or other peace officer, the sheriff or officer shall verify the respondent’s date of birth with the respondent and shall record that date on the order or proof of service entered into the Law Enforcement Data System under ORS 107.720 (Enforcement of restraining orders).

(c)

No filing fee, service fee or hearing fee shall be charged for proceedings seeking only the relief provided under ORS 107.700 (Short title) to 107.735 (Duties of State Court Administrator).

(9)

If the county sheriff:

(a)

Determines that the order and petition are incomplete, the sheriff shall return the order and petition to the clerk of the court. The clerk of the court shall notify the petitioner, at the address provided by the petitioner, of the error or omission.

(b)

After accepting the order and petition, cannot complete service within 10 days, the sheriff shall notify the petitioner, at the address provided by the petitioner, that the documents have not been served. If the petitioner does not respond within 10 days, the sheriff shall hold the order and petition for future service and file a return to the clerk of the court showing that service was not completed.

(10)

Intentionally left blank —Ed.

(a)

Within 30 days after a restraining order is served under this section, the respondent therein may request a court hearing upon any relief granted. The hearing request form shall be available from the clerk of the court in the form prescribed by the State Court Administrator.

(b)

If the respondent requests a hearing under paragraph (a) of this subsection, the clerk of the court shall notify the petitioner of the date and time of the hearing, and shall supply the petitioner with a copy of the respondent’s request for a hearing. The petitioner shall give to the clerk of the court information sufficient to allow such notification.

(c)

The hearing shall not be limited to the issues raised in the respondent’s request for hearing form. If the respondent seeks to raise an issue at the hearing not previously raised in the request for hearing form, or if the petitioner seeks relief at the hearing not granted in the original order, the other party shall be entitled to a reasonable continuance for the purpose of preparing a response to the issue.

(11)

If the respondent fails to request a hearing within 30 days after a restraining order is served, the restraining order is confirmed by operation of law. The provisions of this section are sufficient to meet the due process requirements of 18 U.S.C. 922(g) in that the respondent received actual notice of the right to request a hearing and the opportunity to participate at the hearing but the respondent failed to exercise those rights.

(12)

Service of process or other legal documents upon the petitioner is not a violation of this section if the petitioner is served as provided in ORCP 7 or 9. [1981 c.780 §4; 1983 c.561 §2; 1985 c.629 §4; 1987 c.805 §4; 1989 c.605 §1; 1991 c.303 §2; 1991 c.382 §2; 1991 c.724 §22; 1993 c.375 §2; 1993 c.643 §2; 1995 c.637 §5; 1995 c.794 §1a; 1997 c.607 §1; 1997 c.707 §16; 1997 c.863 §4; 1999 c.617 §2; 1999 c.1052 §§9,9a; 2005 c.536 §2; 2007 c.11 §7; 2009 c.359 §1; 2011 c.274 §1; 2013 c.366 §55]

Source: Section 107.718 — Restraining order; service of order; request for hearing, https://www.oregonlegislature.gov/bills_laws/ors/ors107.html.

Notes of Decisions

This section is mandatory, not permissive, and court had non-discretionary duty to hold hearing on Petition for Restraining Order and to Prevent Abuse. State ex rel Marshall v. Hargreaves, 302 Or 1, 725 P2d 923 (1986)

“Molest” means to annoy, disturb or persecute, especially with injurious effect, and includes general harassment. State ex rel Emery v. Andisha, 105 Or App 473, 805 P2d 718 (1991)

“Menace” means to show intention to harm or to act in threatening manner. State ex rel Emery v. Andisha, 105 Or App 473, 805 P2d 718 (1991)

Party to hearing on relief granted by restraining order has right to call witnesses. Miller and Miller, 128 Or App 433, 875 P2d 1195 (1994)

Right to hearing contemplates both sworn testimony of parties and examination under oath of other witnesses on relevant matters. Nelson v. Nelson, 142 Or App 367, 921 P2d 412 (1996)

Return of service for restraining order is admissible under hearsay exception for official records. Frady v. Frady, 185 Or App 245, 58 P3d 849 (2002)

Existence of restraining order prohibiting petitioner from contacting respondent does not provide grounds for refusing to issue restraining order prohibiting respondent from contacting petitioner. Rosiles-Flores v. Browning, 208 Or App 600, 145 P3d 328 (2006)

Phrases “interfering with” and “interfere with” suggest behavior that constitutes direct interference with person protected by Family Abuse Prevention Act order. State v. Trivitt, 247 Or App 199, 268 P3d 765 (2011)

Where parties did not have opportunity to be heard on issues of law or fact related to relief available under subsection (1) of this section and court was not asked to make determination on those issues, hearing was not “held pursuant to” subsection (10) of this section and court lacked statutory authority to award attorney fees under ORS 107.716. Rhodes v. Gannon, 281 Or App 1, 381 P3d 869 (2016)

Where defendant boarded bus on which petitioner was riding and spoke to bus driver, who then spoke to petitioner while defendant waited outside bus and returned to defendant with message from petitioner, defendant’s conduct involved verbal contact with petitioner through third party sufficient to provide evidence of willful attempt to contact petitioner. State v. Harrison, 290 Or App 766, 417 P3d 513 (2018)

When determining if there is imminent danger of further abuse, court must consider if danger exists in near future, and must make determination based on totality of circumstances, because “imminent,” as used in this section, implies temporal limit. Buell v. Buell, 366 Or 553, 466 P3d 949 (2020)

Law Review Citations

33 WLR 971 (1997)

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 107.718 Restraining order

(1)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(A)

(B)

(i)

(2)

(3)

(4)

(5)

(6)

(a)

(b)

(c)

(d)

(e)

(f)

(7)

(8)

(a)

(b)

(c)

(9)

(a)

(b)